Your rights over communal parts of your building

As a tenant, you have rights over your own flat, as well as communal parts of your building, such as stairwells, lifts and entrance halls. You also have rights over the communal installations which service your flat and other parts of the block, such as heating and electricity.

What are your rights?

Section 11 of the Landlord and Tenant Act 1985 is the main source of your rights over the communal parts of your block. Under this provision, your landlord is required to keep the structure and exterior of the building in repair. Your landlord is also required to keep in repair and proper working order installations for water, gas and electricity as well as sanitation and heating. These duties cannot be contracted out in your tenancy agreement or lease.

The Act extends these duties to any part of the building in which your landlord holds an estate or interest. This means the duty also applies to sub-tenancies, i.e. to landlords who are themselves lessees/tenants. For instance, if your landlord is the owner of a flat where the council is the freeholder of the building, your landlord would nonetheless be under a duty to use their best endeavours to keep the communal parts of the building in repair as they would hold an interest in those parts by way of their lease with the freeholder.

It will often not be possible for a landlord of a subtenant to undertake the repairs as they may lack sufficient rights to do so. In these circumstances, your landlord has a defence for failing to carry out the repairs if they can show they used all reasonable endeavours to obtain the right but were unable to. Practically speaking, where your landlord is not the freeholder or in control of the common areas of your building, they are likely to pass the duty to carry out the repairs onto the freeholder. The freeholder would be under the same obligation to them and is more likely to be able to undertake the repairs.

Your lease or tenancy agreement may contain ‘express’ terms placing further specific obligations on your landlord to repair the common areas of your block. If this is the case, your landlord will be obliged to fulfil the specified duties. The scope of these rights will be dependent on the wording.

How to enforce your rights?

If the common parts of your block remain under your landlord’s control, which is likely to be the case if your landlord is a housing association or the council, then their duty to repair does not require you to first give notice of the disrepair. It would, nevertheless, be advisable to report any disrepair to the communal parts of your building to your landlord before beginning legal action. If you do so you are more likely to get repairs done without having to take legal action but if you don’t the compensation you are entitled to because your landlord fails to remedy the repairing covenant could be reduced.

If your landlord is not in control of the common areas of your block because you are a subtenant, you will need to give notice to your landlord before their duty to repair kicks in. Make sure you keep a record of any time you have given notice to repair as this will be useful evidence of the landlord’s breach of duty should they fail to carry out the repairs.

Communal issues affect multiple residents but not necessarily all residents equally. You may be concerned that you can only enforce your rights if all your neighbours act together. In fact, any tenant or leaseholder in a block has the right to bring legal action against the landlord or freeholder. However, there can be significant advantages in acting together.

If your landlord fails to repair the communal areas even after you have given notice, legal action may be necessary to get the repairs done. You can contact our team to advise you on how to enforce your rights.